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SCOTUS Accepts Another Gerrymandering Case

Last week, the U.S. Supreme Court decided to add a handful of cases to their docket. Among the seven new cases is a familiar issue: partisan gerrymandering.

While the Gil v. Whitford case is still under submission, the High Court will hear a slightly different challenge to the practice of political parties gerrymandering voting districts after winning a controlling majority in a state's legislature. Gil dealt with an equal protection challenge, while the new case, Benisek v. Lamone, deals with a First Amendment challenge.

What's This Case About?

Like the Gil case, Benisek involves the political party in power having redrawn the voting districts to favor their own party. And while Gil has the democrats challenging the partisan map drawn by Republicans in Wisconsin, Benisek involves Republicans challenging the partisan map drawn by democrats in Maryland.

And while partisan gerrymandering used to be considered part of the spoils that went to the victor, SCOTUS may be looking to end the polarizing practice. The newest case alleges that the partisan gerrymander violated the First Amendment rights of voters in a single judicial district. The theory is that the district traditionally voted Republican, and as such, the democratic legislature retaliated against the Republican voters in the district by diluting the Republican contingent out of the district. Notably though, a Republican governor did win over 50% of the votes in that district subsequent to the redrawing of the map, which significantly undercuts the claim.

The Clairvoyant Justice Kennedy

Interestingly, during the arguments in Gil, Justice Kennedy hinted that a First Amendment challenge could also be cognizable. As we noted after those arguments, Kennedy seems hot to issue a decision on this issue, and the Court taking up Benisek is potentially even more proof Kennedy wants to decide this issue on First Amendment grounds. The pair of cases being considered could form the basis of the test envisioned by Kennedy over a decade ago. In a 2004 gerrymandering case, the Court failed to articulate a test for when partisan redistricting violates the constitution.

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